Sky TV launched legal action in a bid to force ISPs to block access to streaming and video download websites.
As you'd expect, the move didn't go down well with the industry. At least two ISPs say they will fight Sky in court.
Sky sent notice that it will seek court orders for Spark, Vodafone, 2degrees and Vocus — which trades as Orcon,
Slingshot and Flip - to block a list of unspecified sites. The date blocking should start is not specified in the
Spark and Vocus seem ready to resist.
The four ISPs account for more than 90 percent of all online accounts in New Zealand. If Sky gets them to block, picking
off the smaller players will be trivial.
Sky TV's letter specifically names the Pirate Bay as a site it wants to be blocked.
The pay TV company says it is targeting illegal pirate sites as they are a threat to local entertainment industries and
The timing is curious. Most of the threat from piracy has subsided. The battle is won.
Once were pirates
It would have made sense for Sky to have moved against these websites in the past. But today piracy is only a shadow of
its former self.
Vocus consumer general manager Taryn Hamilton says his company's stats show visits to The Pirate Bay - a popular
file-sharing site - is now at 23 percent of its 2013 peak.
Most of the damage to Sky TV's business was done a long time ago. Today pirates are no threat. Legitimate online
streaming services like Netflix, Hulu and Amazon are what is really killing Sky's business. They have already killed the
They offer a similar mix of entertainment programming at a fraction of Sky's price. Netflix is $15 a month, Sky TV is
Sport is different
Things are different with sports programming. Sky has the rights to the most popular sporting codes in New Zealand,
there are no legitimate alternatives.
While determined customers with VPNs can often shop around overseas for a better deal, it's often too much trouble for
most people. And overseas coverage can be inferior,
Hamilton says the idea of Sky blacklisting sites is dinosaur behaviour and something you might expect to see in North
It is certainly dinosaur behaviour. The fact that Sky names the faded and diminished Pirate Bay as a public enemy is a
sign of how out-of-touch it is with the current scene.
Yet blocking websites isn't restricted to totalitarian North Korea. A number of countries have laws blocking pirate
websites. Often after the kind of litigation Sky plans. Web-blocking regimes don't always work. There are plenty of
workarounds for determined pirates.
Hamilton says Vocus will fight Sky in court. His company is not alone. Spark says it also aims to fight the injunction. Last time there was a copyright battle, Spark sided with Sky TV
. InternetNZ says it is seeking legal advice. Vodafone, which has a close relationship with Sky
, says it will comply with any court order. At the time of writing, 2degrees has yet to commit.
Should the four ISPs co-ordinate their defence, maybe with help from InternetNZ and other interested parties, life could
be difficult for Sky, which is already in long-term decline as it continues to fail to adjust to new technology.
Lawyers are obvious winners here. Litigation is likely to be expensive. One problem is there is no precedent in New
Zealand for this kind of complaint, the Copyright Act stems from a time before video streaming was practical. Until now
most service providers have walked away from pitched battles.
Around the time Sky sent letters to the ISPs, the company won an interim injunction against Fibre TV which sells the
Kodi set-top box. Fibre TV sells the set-top box along with software designed to make piracy easy. The decision was made
in the Christchurch District Court and Sky was awarded costs.
It is possible that the Kodi victory spurred Sky TV's renewed interest in attacking the ISPs. Possible, but unlikely.
Fibre TV was small and unable to put up much of a fight. The case against Fibre TV was a slam dunk and there's not much
public sympathy for the company.
On the other hand, the attack on ISPs looks set to be a public relations disaster for Sky. The move is unpopular with
Criticism of Sky TV
As you'd expect Sky TV has come in for a lot of criticism over its move - not just from the ISPs who are in the firing
It is fair to say Sky is struggling to defend an outmoded business model. Yet it is equally understandable that the
company wants to protect the value of the rights it has purchased in good faith from movie or TV studios and sporting
It is possible that Sky is acting against ISPs on behalf of rights holders. In the past, the big US-based media
companies have attempted similar actions. They or the sporting codes could be bankrolling Sky's litigation or even
pressuring Sky to act as their proxy.
All these protagonists seem out of touch with what's happening on the ground. Netflix has shown how to make software
piracy redundant. It charges what consumers consider a fair price for a decent selection of programming. That becomes a
compelling alternative to navigating the dark side of the internet.
Sky needs to find a way to cut its prices to Netflix-like levels. From outside, that looks hard because it appears
bundling channels lets Sky subsidise some content by overcharging for other content. If so, it is an unsustainable
business model. Moreover, the problem has nothing to do with Orcon customers being able to see the Pirate Bay.